INTRODUCTION:
A child is said to be born outside wedlock where such child is born of parents that are not married in accordance with either the provisions of the law or a particular custom of the society regulating marriage. This expression refers to children born of people who are not married at the time of birth. Society has given children born of this circumstances various names such as “bastard”, “illegitimate child”, “love child”,” non- marital child”. This acts should however, be condemned as no child desired to be born of such “discriminatory circumstances” if given the opportunity to decide”.
In Nigeria, children are born in and out of wedlock on daily basis. Historically, both society and the law treated children born out of marriage unfairly. As a result, It will not be strange to say that the number of children born out of marriage across the country is overwhelming.
Furthermore, Section 42 of the Constitution of the Federal Republic of Nigeria 1999 (As amended) provides for the Right to Freedom from discrimination while Subsection (2), by extension, specifically emphasizes that “no citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his or her birth.” The reasoning of the Draftsman is most likely that, no child has the freewill to decide the circumstances of his or her birth or who his or her parent should be. Flowing from this premise, it will be most unfair for either the government or society to deprive such a child/children certain rights due to the circumstances of their birth as it will not only be prejudicial to their rights but will also be repugnant to natural justice, equity and good conscience.
Amongst other scenarios, the controversy as to the rights of children born outside wedlock is more pronounced at the point of succession, especially when the father (deceased) of the child died intestate. As an author rightly put, ”most of the cases on illegitimacy deal with the rights of illegitimate children to succeed the property, it is in this area, that the consequences of illegitimacy are being greatly felt”.
However, where a deceased in his Will makes provision for such a child, it would not be an issue as all contentions would have be laid to rest in the Will.
Flowing from the above, this article will focus on the succession rights of children born out of wedlock. As earlier posited, Section 42 of the Constitution frowns at every form of discrimination against anyone by reason of the circumstances of their birth; this includes but not limited to depriving a child born out of wedlock succession’s right. To buttress this position further, the Supreme Court of Nigeria in the case of Salubi V. Nwariaku (2003) 7 NWLR ( pt. 819) 426 held that “ the children of the deceased who were born within a lawful wedlock and the children of the deceased who were born out of wedlock are entitled to equal shares to the properties of the deceased”.
However, for such a child not to be deprived of this right, certain requirements have to be fulfilled. These requirements amongst others are: Paternity acknowledgement of such child and presentation of evidential proof to show such child is born of the deceased. This can be seen in the case of Okonkwo V. Okonkwo (2014) 17 NWLR (Pt. 1435) 18, where the court held that once the paternity of a child has been acknowledged by the intestate father, such a child have equal share with the children of the marriage in terms of succession.
In conclusion, based on the above constitutional and judicial pronouncements, dark days when children born out of wedlock faced sever stigmatization and discrimination by reason of their birth should not be allowed to rear its ugly head into our modern day society. This is because Nigerian laws have evolved to recognize the fundamental rights of all children, regardless of their parent’s marital status. Every child, no matter the circumstances of his or her birth deserves the best and enjoys full coverage and benefits of the law.
We hope you have been enlightened by this article, if yes, kindly share same with friends and colleagues. We will also appreciate your comment and questions on this article or any of our articles in the comment section.
